Week 6: Myall Creek and the Law

30 August 2004

Tutorial question:

How far was British law able to protect Australian Indigenous people against violence during the colonial period and what were the reasons for this?

How did issues of gender, race and class impact upon the execution of justice in the Australian colonies? Compare and contrast attitudes to Aboriginal people as victims of frontier violence under British law in 1838 and 1888. What differences of opinion can be traced through the contemporaneous newspaper commentary on the Myall Creek trials. Was their a fundamental split in the white community and what ideological basis did it have? What were the consequences of the Myall Creek massacre for frontier violence and conceptions of the law? Did Indigenous people fall between the cracks of being neither British subjects nor a sovereign people engaged in legitimate warfare with Europeans? What place did Aboriginal people have in the British legal system during and after the period of frontier violence?

Essential Reading:

• Transcriptions of newspaper reports on the Myall Creek trial [Primary source]
• Phillips, D. `Anatomy of a Rape Case 1888: Sex, Race and Violence and Criminal Law in Victoria’ in D. Phillips and S. Davies (eds) A Nation of Rogues, Melbourne, 1994, pp. 97 — 122

Additional Reading:

• Brock, P. ‘Protecting colonial interests: Aborigines and criminal justice’ Journal of Australian Studies, no. 53, 1997
• Davies, S. ‘Aborigines, Murder and the Criminal Law in early Port Phillip, 1841 — 1851’ in S. Janson and S. Macintyre, (eds) Through White Eyes, (Sydney, 1990)
• Highland, G. ‘A Tangle of Paradoxes: Race, Justice and Criminal Law in Northern Queensland, 1882 — 1894’ in D. Phillips and S. Davies (eds) A Nation of Rogues, Melbourne, 1994.
• Wright, N. E. ‘The problem of Aboriginal evidence in early colonial New South Wales’ in Kirkby, D and Coleborne, C. (eds) Law, history, colonialism : the reach of empire (Manchester, 2001)

Extended Reading:

Note: Transcripts of the Myall Creek cases can be found online at http://www.law.mq.edu.au/scnsw/index.htm

• Blanch, R Massacre : Myall Creek revisited (Delungra, 2000)
• Cranston, R. ‘The Aborigines and the Law: An Overview’ University of Queensland Law Journal, vol 8, no.1 Dec 1973: 60 — 78.
• Evans, Julie, ‘Re-reading Edward Eyre: Race, Resistance and Repression in Australia and the Caribbean’ in Darien-Smith, K (ed) Challenging Histories: Reflections on Australian History. Special Issue of Australian Historical Studies, no. 118, 2002, 175 — 198
• Gammage, Bill. ‘The Wiradjuri War, 1838-40’, in Push from the Bush, No. 16, Oct 1983.
• Gifford, P ‘Murder and "the execution of the law" on the Nullarbor’ Aboriginal History 1994, 18, 103 — 122.
• Gilbert, K Aboriginal Sovereignty: Justice, the Law and Land (Canberra, 1993)
• Hanks, P. and Keon-Cohen, B. Aborigines and the law : essays in memory of Elizabeth Eggleston (Sydney, 1984)
• Jenkin, G Conquest of the Ngarrindjeri (Adelaide, 1979)
• Milliss, R. Waterloo Creek: The Australia Day Massacre of 1838, George Gipps and the British Conquest of New South Wales McPhee, Gribble, Ringwood, 1992
• Pilmer, R.H. Northern Patrol: An Australian Saga, edited and annotated by Cathie Clement and Peter Bridge (Perth: Hesperian Press, 1998). [primary source]
• Push from the Bush: A Bulletin of Social History — Special Myall Creek Edition, no. 20, April 1985, pp. 58 — 87
• Read, Peter. ‘Rape of the soul so profound : Some reflections on the dispersal policy in New South Wales’, Aboriginal History, vol. 7, no. 1, 1983, pp.23-33.
• Reynolds, H. Aboriginal Sovereignty (Sydney, 1996)
• Reynolds, H. The Law of the Land (Melbourne, 1992)
• Sampson, D ‘ "The nature and effects thereof were … by each of them understood": Aborigines, Agency, Law and Power in the 1867 Gurnett Contract, Labour History, 74, 1998, 54 — 69
• Trudgen, Richard. ‘The Fifty Year War’, in his Why Warriors Lie Down and Die (Darwin, 2000)
• Wilmer, Franke. The Indigenous Voice in World Politics (Newbury Park, California: Sage, 1993).